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Back to: Third Session of the Ad Hoc Committee
Daily summary of discussions
Daily
summary of discussions related to Article 9
EQUAL RECOGNITION AS A PERSON BEFORE THE LAW
UN Convention on the Rights of People with Disabilities
Third session of the Ad Hoc Committee - Daily Summary
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Volume 4, #3
May 26, 2004
MORNING SESSION
Commenced: 10:27 am
Recessed: 12:54 pm
India proposed deleting from 9(b) of “as others, including
in financial matters”, and inserting instead “except as provided by
law.” In 9(c), the clause “endeavor to” should be inserted prior to
“ensure”. Under 9(c)(i), “to the extent feasible” should be inserted
between “assistance is” and “proportional.” In 9(d), the words “endeavor
to ensure” should again be inserted; and the words “as well as to enter
into binding agreements or contracts, to sign documents, and act as
witnesses" should be deleted. It would be “imprudent and unfair
to leave unprotected a large number of people with multiple disabilities
in circumstances of abandonment, destitution, or extreme poverty and
whose families desperately require assistance.” India proposed inserting
this new paragraph: “The state must protect the interests of PWD who
cannot exercise their legal capacity in reduced /temporarily reduced
situations. In exceptional circumstances where legal safeguards are
necessary, the appointment of third parties as legal guardian/surrogate
may be made in the best interests of PWD.”
Japan proposed a new subparagraph after 9(f): ”Take
appropriate and effective measures to eliminate physical and communication
barriers and to reduce understanding difficulty of PWD in order to exercise
all the rights in judicial procedure which are provided in the International
Covenant on Civil and Political Rights.” They reasoned that in interrogations
and tribunals, PWD -- especially people with mental, hearing and visual
disabilities -- are often victims of so-called normal procedures. Due
to their inability to understand what judges and interrogators are saying,
PWD should be given extra protections to avoid being wrongly judged.
Syria suggested adding at the end of 9(e) the words,
“bearing in mind the quality and degree of disability,” arguing that
this would make the Article more realistic, applicable, and efficient.
Canada called Article 8 an important Article, and
stated that it welcomes the opportunity to hear all views. They stated
that the current Article has some difficulties, as reflected in the
footnotes to the WG text, alluded to by other delegations including
India. The main difference is a lack of consensus around what is meant
by legal capacity. Canada proposed replacing the current WG draft text
with the following:
“1. States Parties shall recognize that, in civil matters, adults with
disabilities have a legal capacity identical to that of other adults
and shall accord them equal opportunities to exercise that capacity.
In particular, they shall recognize that adults with disabilities have
equal rights to conclude contracts and to administer property and shall
treat them equally in all stages of procedure in courts and tribunals.
"2. States Parties shall ensure that where adults with disabilities
need support to exercise their legal capacity, including assistance
to understand information and to express their decisions, choices and
wishes, the assistance is proportional to the degree of support required
and tailored to the adult’s individual circumstances.
"3. Only a competent, independent and impartial authority, under
a standard and procedure established by law, can find an adult not to
have legal capacity. States Parties shall provide by law for a procedure
with appropriate safeguards for the appointment of a personal representative
to exercise legal capacity on the adult’s behalf. Such an appointment
should be guided by principles consistent with this Convention and international
human rights law, including:
"(a) ensuring that the appointment is proportional to the adult’s
degree of legal incapacity and tailored to the adult’s individual circumstances;
and,
"(b) ensuring that personal representatives take into account,
to the maximum extent possible, the adult’s decisions, choices and wishes.”
This new language would address the lack of clarity regarding the definition
of “legal capacity” by referring to CEDAW, Article 15.2. There would
be no need to include 9(a), 9(b), and 9(c) equality provisions since
equality would be fully covered by Article 7.
The proposed text for 9.2 comes from WG draft 9(c)(i),(ii) with important
concepts of proportionality and the tailoring of support to the individual
circumstances of PWD. 9.3 is included to clearly address India and other
delegates’ concerns regarding what would happen when a PWD is found
to have diminished or no legal capacity. Language addressing these issues
is necessary for inclusion in the Article, so that critical safeguards
regarding appointment of a personal representative or substitute decisionmaker
for that adult are in place. Canada’s two Article revision imperatives
are to incorporate proportionality, and adult choices and wishes.
China proposed to make 9(a) more concise by adding
the word “equal” before “rights” and deleting the phrase “equal to all
other persons.” The content of 9(b), regarding PWD having the same rights
under the law, is already reflected in 9(a). Paragraph 9(e) should be
deleted. The Convention should not be too detailed, but should focus
on principles. Since 9(b), 9(c) and 9(d) have similar content concerning
assistance to disabled, and Article 13 has specific provisions on providing
information to PWD, 9(c) and 9(d) should be merged into the following
text: “States Parties shall endeavor to provide assistance to PWD who
experience difficulties in exercising their rights.”
Uganda suggested redrafting 9(a) to read “States Parties
shall organize and ensure that PWD are individuals with equal right
before the law as other persons." Under 9(b) “accept” should be
replaced by “ensure." In order to provide wider areas of equality
for PWD, the end of 9(b) should read: “Ensure that PWD have full legal
capacity on an equal basis as others including in political, civil,
social, cultural and economic matters.” In 9(c)(i) the word “interfere”
should be replaced with “undermine.”
Argentina stated that this is a very important Article,
and offered comments about the risk of rewriting definitions already
embodied elsewhere; and also about a lack of clarity in describing how
to empower PWD who need assistance. To simplify matters, Argentina supported
the proposal introduced by Canada as more general, avoiding listings
that may falsely imply exclusion of other types of assistance.
Thailand supported the retention of WG Article 9, but
are willing to support any proposed amendment seeking to clarify confusing
language. It is not necessary to replace the term "persons with
disabilities" with the word "adults," as the article
should address adults who have legal capacity; children normally have
other legal safeguards.
Ireland stated that the EU shares many of the concerns
about this Article being too detailed in certain areas and insufficient
in others. The EU supported the Canadian proposal, except that there
is a need at the outset of the Article for a strong statement of equality
to set the framework for subsequent discussion of legal capacity. For
that reason, like China and others, the EU supported rephrasing 9(a)
and 9(b) to read along the lines of, “Recognize PWD as individuals with
equal rights before the law, and guarantee equality before the law without
discrimination against PWD” There is a difference between recognition
of equal rights and guaranteed equality, and both should feature in
this Article. It is necessary to return to an exploration of recognition
of legal capacity by persons who need assistance, and therefore the
EU supported 9(c)(i). The words after “tailored to their circumstances"
should be deleted because they are unclear. The idea in 9(c)(ii) is
central. Any decision in relation to legal capacity needs to be taken
by independent and impartial authority, Canada's proposal in this regard
deserves a close look. Paragraphs 9(d) and 9(e) are too detailed and
lack clarity. As an odd mixture of ideas in these paragraphs, they should
be deleted initially, and their concepts should be considered later.
The issue of property is worthy of special mention, and can be resolved
by keeping 9(f), but the EU remains open to further proposals in that
regard.
Kenya proposed working with the WG draft text on this
Article. Amendments should be made to 9(e), as follows: “Take all appropriate
and effective measures to ensure the equal rights of PWD to own, inherit,
use, or otherwise dispose of property.” In Africa PWD often are not
allowed to own or use property. Kenya supports CEDAW language vis-à-vis
property rights.
Qatar stated that this was an important Article, but
difficult without a definition of disability to go along with relevant
subparagraphs. Qatar would be ready to look at any relevant proposals
along these lines.
Costa Rica agreed with the EU proposal to revamp 9(a)
noting this Article represents a major step forward in establishing
and recognising equality of PWD under the law. Costa Rica supported
the Canadian proposal, especially 9.3, which deals with the problem
of PWD who don’t have a chance to get representation. The reference
to financial matters in 9(b) should be deleted. 9(c)(ii) requires additional
language recognising the need for periodic review and revision of the
decisions in question, relating to individuals that assist or may represent
PWD. A subparagraph should be added, based on language found in other
international instruments, as follows: ”Take necessary measures to ensure
everyone whose rights and freedoms as recognized in this Convention
are violated should have an effective remedy before a national authority,
notwithstanding that the violation has been commited in an official
capacity.” Costa Rica reaffirmed backing for proposals made by India,
Canada, Ireland, and Japan.
Kuwait stressed the importance of this Article. It
also affirmed the need for a juridical, legal definition of equal recognition,
but adding greater detail to the text might spawn controversy and undermine
prospects for the Convention. Canada’s approach in 9(a) and 9(b) might
be a proper beginning of the process of amending the Article.
Mexico expressed concerns about the differences among
the legal systems of various countries, some based on Roman/Continental
law and some on Common/Anglo Saxon law. Under these two approaches,
either a PWD is considered to have full capacity or is prohibited from
certain things; there is no intermediary position. Mexico stated that
its first goal was to stipulate safeguards necessary for preventing
abuse; its second goal was to propose measures so that each country
can adopt legislation that fits its own circumstances; and its third
goal was to leave the door open, so that the Convention would not serve
as a “straitjacket for more favorable laws.” Mexico further suggested
that the title of the Article be changed to “Equality under the law,”
and recommended that the text of 9(a) be changed to: “Recognize PWD
as subjects of rights and obligations before the law, in equal conditions
to those of persons without disabilities.”
Mexico considered 9(b) to be redundant since 9(a) is so broad. It considered
9(c) to be well constructed and general enough to establish the principle
regarding assistance PWD may require to fully exercise their legal capacities.
In this regard 9.3 of the Canadian proposal is excessively detailed.
This only needs to ensure an established process under the law for applying
necessary legal safeguards. Mexico expressed concern that in some countries
it may not be the judiciary per se that handles these matters, but some
other entity, such as in the case of tutelage over minors. Moreover,
the Canadian proposal introduces a series of difficult subjective elements,
such as guardians to make decisions for PWD. In Mexico, the delegate
explained, a judge can decide on these situations on an ad hoc basis,
and the status of legal incapacity is not irreversible. Mexico suggested
that 9(d) be maintained as it is, but it stated that although a person
may be fully legally capable, he or she might need juridical backing
to understand certain things. Mexico considered 9(e) to be excessively
detailed and thought that certain elements of it could be worked into
9(d), although Mexico agreed with the EU on deleting 9(e) from the text.
Mexico also suggested that the end of Convention should contain an Article
as a safeguard clause, based on those in other human rights instruments,
stipulating that no provision in this Convention shall undermine the
provisions of any domestic law more favorable to the rights of PWD.
Finally, Mexico welcomed Japan’s proposal, but felt that it could be
covered by a general provision, as it would otherwise need to be infused
into all the Articles of the Convention.
Viet Nam suggested adding “if the PWD are in need”
after “their own financial affairs.”
India expressed its support of the Canadian proposal.
Sierra Leone noted that PWD gave significant contributions
to this Article and asserted that it is important to review the footnotes
for this article when considering it. It stated that the Article could
end after 9(c)(i), as it recognizes PWD as individuals, and agrees with
Uganda’s proposals in this regard. There must be established legal procedures
within the jurisdiction of each state to ensure the rights of PWD. It
cautioned that the Committee should avoid legal commentary in reviewing
this Article. The Convention cannot include everything; the Committee
should work within the WG draft.
New Zealand stated that the Canadian proposal seemed
to capture more clearly some of the ideas already contained in Article
9, but does not contain ideas expressed in 9(e) and 9(f). While further
clarity can be brought to the Article, the Committee should recall why
9(e) and 9(f) were included in the draft in the first place. New Zealand
then recalled Articles 13 and 15 of the Convention on the Elimination
of All Forms of Discrimination against Women (CEDAW), which was an effort
to correct the historical presumption that women were not capable of
owning property or exercising legal capacity; there is a similar presumption
facing PWD which should be corrected with a similar level of detail.
New Zealand stated that while specific issues of loans, mortgage, and
credit could be incorporated into Article 15, it would like to see other
important concepts retained in the text of this Article. New Zealand
then pointed out that the Canadian proposal is the only one explicitly
stating the important safeguard that only a court can deem a PWD to
have reduced or no legal capacity, though the WG's draft hints at it.
India’s proposal mentions guardians or surrogates, which leaves out
the possibility that a person can be appointed to exercise legal capacity
for a PWD only for a limited time or in a limited function.
Liechtenstein did not agree with the placement of
the Article and suggested that it would be more appropriately placed
after Article 7, and remarked that the ordering of Articles seemed to
be a problem throughout the draft. It also agreed with the Canadian
proposal, especially surrounding the issues of equal legal capacity
in general and the provisions and safeguards for those who need assistance.
The WG draft did not address personal representatives or guardians.
The AHC should work with the Canadian proposal, but should not forget
other ideas that were contained in the WG draft or suggested later,
such as the right to have and dispose of property.
Serbia and Montenegro suggested working with the EU
draft of 9(a) and accepted Canada’s proposal from 9(b) on; and suggested
adding to 9.3 of Canada’s proposal “and with the application of relevant
safeguards, including provisions for review.” PWD should enjoy equal
rights to property without discrimination. Serbia and Montenegro agreed
with New Zealand that this might not be the right placement of the Article,
and proposed that the Article retain the last subparagraph.
Jordan called this a very important Article that needs
serious revision and supported the Canadian proposal, especially point
3; and Jordan proposed the addition of subparagraph 9(c) to the Canadian
text, “ensuring regular review of the findings of legal incapacity.”
Botswana supported the suggestions made by Japan,
with the addition of “social” after “physical” to address negative attitudes
toward PWD.
Oman agreed that this is an important Article and
affirmed that PWD are equal before the law and have full legal capacity
on an equal basis with others, but questioned how this is exercised.
It is crucial that PWD have the ability to participate in the legal
process; 9(d) deals with the provision of tools that enable PWD to participate
and to ensure that the legal process itself is accessible, and 9(d)
must be formed sufficiently broadly to make all legal processes exercisable.
The Committee should consider degree and quality of disability when
providing assistance for the exercise, not the limits, of rights.
Yemen questioned the title, asking, “before the law
– what law? Of what nation?” Yemen asserted that laws differ from one
country to the next and cautioned that a text must be crafted that is
mindful of this. Legal capacity of PWD differs depending on the type
of disability – e.g., with disabilities of movement or vision “we can
find a way of dealing with it but certain disabilities do not lend themselves
to recognition under the law as to legal capacity.” Therefore, Yemen
supported Qatar, in that there is not a precise definition of disability
in defining legal capacity.
Ireland, speaking on behalf of the EU, suggested a
change to 9(c)(ii), deleting “only” and, after the word “taken,” adding
the words “by a competent, independent and impartial authority”; and
appending “including provisions for review.”
Lebanon expressed interest in the Canadian proposal, especially paragraph
3; suggested keeping all elements of the WG draft; and agreed with the
amendments proposed by the EU.
Norway remarked that the EU proposal, more than the
Canadian one, emphasized not only equal rights, but also equality before
the law. Norway agreed with Costa Rica's proposal to include a review
mechanism in 9(c)(ii) as a safeguard.
Thailand reiterated its support for the content as
put forth by the WG. Any attempt to move away from it should only be
for the purpose of clarity. Some countries may not think 9(d), 9(e),
and 9(f) are important, but in some developing countries, PWD are at
risk of being deprived of these rights. However, Thailand would support
their placement, in their entirety, in a different Article.
Colombia expressed concern that the Canadian proposal
focused only on adults and addressed only civil matters, not criminal
or other areas of law. Colombia suggested keeping 9(a) and 9(b), and
agreed with Mexico that there should be equality vis-à-vis persons
without disabilities, by establishing affirmative measures to help persons
with disabilities. Colombia suggested deleting 9(d), as it lacks clarity
with regards to managing personal affairs, control over moneys, and
access to credit.
Mexico stated that Canada’s proposal might have a
restrictive impact by limiting the scope of the Article to the civil
arena only.
The floor was opened to comments from NGOs.
International Labor Organization suggested the preparation
of detailed guidelines for implementation, not only for this Article
but also for other Articles, a procedure which the ILO itself has found
effective. The Article should provide for an effective dispute, prevention,
and settlement system, as well as for legal aid.
The Chair noted that this practice already exists under international
law.
World Network of Users and Survivors of Psychiatry
stated that the Canadian proposal left out essential elements of the
text, specifically 9(b) and 9(c)(i) that would be necessary to support
the achievement of full equal rights by PWD. If assistance is provided,
the rights and freedoms of legal capacity is not interfered with. WNUSP
agreed with Uganda that “undermine” should be replaced with “interfere”
in order to make it harder to impose guardianship, because it is in
effect a “social and legal death” and a violation of human rights and
dignity for a person not to exist before the law. People may need support
in decisions and some people may need a high level of support, but that
does not mean a person may be excluded. It is possible to provide assistance
without taking away or limiting a person’s rights. Autonomy must be
respected; a support person should facilitate self- determination in
the decision-making of the person being supported. WNUSP also discussed
interdependence and relationships of trust, and the need for procedural
safeguards to assure that support people act on the wishes of PWD and
do not abuse their position by imposing their own wishes on the PWD.
When capacity is assessed, it begins a process of discrimination, especially
in cases involving people with intellectual or psychiatric disabilities.
Even where this is not a legal presumption, it is a social presumption
and lawmakers and judges retain that social presumption. WNUSP suggested
that the Committee review their model on supported decision-making and
issues of providing assistance without limiting rights.
People with Disabilities Australia, the National
Association of Community Legal Centers, and Australian
Federation of Disability Organizations stated that there are
four key rights underpinning Article 9: 1) the right to recognition
everywhere as persons before the law, found in Article 16 of the ICCPR
and in 9(a) of this draft Convention; 2) the right to be presumed to
have full legal capacity to make decisions in all areas of life, found
in Article 15 of CEDAW, in the common law of various states and jurisdictions,
and in 9(c) and 9(d) of this Convention; 3) the right to the full and
equal enjoyment before and under the law as all other people, recognized
in Articles 14, 15, and 26 of the ICCPR and 9(a) of this Convention;
and the right to own and administer property, as recognized in Article
17 of the UDHR, Articles 13 and 15 of CEDAW, and 9(d) to 9(f) of this
Convention. PDA asserted that these rights represent the necessary preconditions
to the effective exercise of all other rights of PWD and recommended
they be addressed in separate articles, rather than together in Article
9, which is neither clear nor far-reaching enough, and which “conflates
and confuses the four quite separate rights.” PDA agreed with the wording
of 9(d), but recommended substantial redrafting of 9(c)(i) to elaborate
procedures and safeguards necessary to support the full range of assisted
and substituted decision making from the most informal, culturally appropriate,
and least restrictive to the more formal options of limited and plenary
guardianship. PDA supported ILO in that legal aid must be provided for
PWD to challenge deprivations of their liberty.
Inclusion International supported the position of
the World Network of Users and Survivors of Psychiatry in that people
with psychosocial and intellectual disabilities are most vulnerable
in attempts to propose substituted decision-making. While II endorsed
the idea of seeking legal means to develop supported decision making
options before the law, they hoped that the Committee would adopt recommendations
by Jordan and others that substitute decision-making be granted only
as a last resort and only on a time limited basis. II stated that Japan
raised an important issue, touching upon the spirit of the Convention,
related to people with significant communication challenges who need
to be assisted in having their needs understood and expressed.
Save the Children supported the statements of the
World Network of Users and Survivors of Psychiatry and Inclusion International.
It suggested appending to 9(a) the words “and respect the rights of
children with disabilities to exercise legal capacity in accordance
with their evolving capacities” and replacing "persons" with
“children and adults.” In 9(d) the words “difficulty in asserting their
rights, in understanding information and in communicating have access
to assistance to understand information presented to them and to express
their decision, choices” should be replaced with the words “difficulty
in communication, accessing and handling information needed to address
their rights, can acquire non-partial assistance.”
Disabled Peoples’ International stated that the failure
to recognize the fundamental right to make decisions with support has
resulted in institutionalization, forced sterilization and countless
human rights infractions for PWD all over the world. Paragraph 9(c)
is a key element, but additional wording is needed. DPI directed the
Committee’s attention to footnote 33, which articulates that where assistance
is necessary, the underlying assumption is still for full legal capacity;
DPI felt that this principle was not made explicit in the draft text.
Similarly, DPI stated that 9(c) does not outline procedural safeguards,
such as when and how assistance should be provided, who will make these
determinations, or avenues for review and appeal. DPI supported Japan
on the need to take effective measures to eliminate physical and communication
barriers and to ensure the exercise of rights in judicial procedures
according to the ICCPR.
World Blind Union stated that these rights should
be equal to other persons, and should be detailed and specific. WBU
considered that 9(d), 9(e), and 9(f) were of the highest importance
and should remain in the text, as blind persons are often denied the
right to own property, to marry, to inherit, to sign contracts, to hold
bank accounts, to sign documents, or even to vote in public elections.
WBU also pointed out that in footnote 33 the term “disabled person”
is used, and urged "person first" language in all cases.
The UN Economic and Social Commission for the Asia and the
Pacific (ESCAP) stated that the draft does not have specific
provisions for remedies, and suggested adding text from the Bangkok
draft, as follows: “States Parties recognize that access to effective
remedies may require the provision of free legal assistance to PWD and
the modification or flexible application of existing laws and practice
regulating matters of procedure and evidence.”
World Federation of the Deaf stated that assistance
alone is not enough. Often in court or police situations sign language
interpreters are ordered to leave the room. WFD suggests adding “interpreter
services” to both 9(d) of the WG draft and to 9.2 of Canada's draft.
WFD remarked on the importance of a property clause, and on the interconnectedness
of legal capacity and property.
The Special Rapporteur stated that 9(f) is not sufficient
to protect the rights of PWD.
Mexico supported the ILO in calling for the development
of guidelines or even a model law which could direct the preparation
of domestic law.
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